July 28, 2009

Public Defenders: 'Systemic Failure' at DOJ Demands Censure

Lawyers for two public defender agencies in Washington today criticized the Justice Department's handling of the unsuccessful prosecution of Zhenli Ye Gon, a high-profile drug case that the department has moved to dismiss amid evidentiary concerns.

A federal district judge in Washington in July asked the Federal Public Defender for the District of Columbia and the D.C. Public Defender Service to weigh in on several issues in the Ye Gon case, including whether the indictment should be dismissed with prejudice, as Ye Gon’s defense lawyers want, and whether the government dismisses cases to avoid judicial inquiry into when prosecutors turn over information to defense attorneys.

Judge Emmet Sullivan of the U.S. District Court for the District of Columbia acted on his own when he extended the opportunity to the public defender agencies to participate in the Ye Gon case, which garnered national headlines when Ye Gon was arrested in Maryland in July 2007. Ye Gon, an international businessman in the pharmaceutical wholesale business, was indicted on a conspiracy charge that alleges he participated in a scheme to pump millions of dollars of methamphetamine into the United States.

In June, Justice trial attorneys moved to dismiss the indictment without prejudice, citing evidentiary concerns—among other things, a principal witness recanted—and saying that Mexico should take the lead in prosecuting Ye Gon. In Mexico, Ye Gon is charged with crimes that include money laundering, firearm and drug violations. A warrant for his arrest there was issued in June 2007. Extradition papers were filed last year. A hearing on extradition is scheduled for next month.

“The problem with the government’s explanation is that the facts upon which it rests were always present in this case,” the public defenders’ joint brief said. Mexico’s prosecution interest, the public defenders note, predates the Justice Department’s interest.

Government lawyers want the case dismissed without prejudice, saying the Justice Department can resume prosecution in the event prosecutors in Mexico are unable or unwilling to proceed with the case. Prosecutors say the government has met its obligations to turn over favorable information to Ye Gon’s lawyers, Manuel Retureta of D.C.’s Retureta & Wassem and D.C. solo practitioner A. Eduardo Balarezo.

More on the case after the jump.

The public defender brief, filed by Sandra Levick of the D.C. Public Defender Service, is urging Sullivan to dismiss the Ye Gon indictment with prejudice. Dismissal without prejudice sends the wrong message, the public defenders say. “Moreover, it fails to deter the conduct the government engaged in here, and instead sends a message that the government may avoid a day of reckoning by dismissing the prosecution, while reserving the right to rebring the case at a later date with a clean slate,” according to the brief. A copy of the 36-page brief is here.

At two court hearings in June—click here and here for news coverage—Sullivan questioned the sudden move to dismiss the case, and he pressed government lawyers about whether the Justice Department failed in its obligation to provide material in a timely manner to Ye Gon’s lawyers.

In response to the judge’s concern, a Justice trial attorney, Paul Laymon of the Narcotics and Dangerous Drug Section, said in court papers filed July 10 (.pdf) that Justice lawyers had been in talks with the Mexican government from late 2008 until April about the resolution of the Ye Gon case. The government has not publicly explained what was said in those talks and why there was a delay in announcing the intent to dismiss the indictment.

“[T]he government is not moving to dismiss here in order to forestall the consequences of any alleged delays in providing discovery. Instead, the government, after having weighed the respective strengths of the Mexican and U.S. cases, is moving to dismiss in deference to the Mexican government’s interest in proceeding as promptly as possible with the extradition of the defendant and his trial in Mexico,” Laymon wrote in the court papers.

Laymon deflected concern that the trial team in the Ye Gon case did not follow the U.S. Attorney’s Manual, which says prosecutors should err on the side of disclosure to defense lawyers. “Instead, the manual is strictly a matter of Department of Justice policy, and any possible failure to comply with it is therefore a matter of internal concern,” Laymon wrote.

The public defenders, in their brief today, seized on this statement and declared that it represents “a systemic failure of the Department of Justice that demands reproach.”

“The issue is not whether the Manual creates substantive rights of the defendant, but whether counsel may rely on it as setting a standard of conduct which prosecutors are bound to follow,” the public defenders wrote. “The government’s dismissive treatment of the relevance of its formal Brady policy is troubling, to say the least.”

Sullivan has scheduled a hearing Thursday to rule on the government's motion to dismiss. In preparation for the hearing, the judge late Monday ordered the government to provide the court grand jury transcripts in the case.